CHUKKAPALLI VENKATESWARLU Vs. KANYADHARA CHALLAIYA AND ORS.
LAWS(MAD)-1952-10-29
HIGH COURT OF MADRAS
Decided on October 14,1952

Chukkapalli Venkateswarlu Appellant
VERSUS
Kanyadhara Challaiya And Ors. Respondents

JUDGEMENT

Krishnaswami Nayudu, J. - (1.) THE plaintiff, who is the appellant, sued in forma pauperis to recover the suit properties, which consisted of 23 items of lands and two houses belonging to one Chukapalli Pichayya as his adopted son having been adopted by his widow defendant 20 (Achamma). Chukkapalli Pichayya died about 80 years prior to the suit leaving defendant 20 a childless widow. Defendants 1 and 2 are the sister's sons of Pichayya. The widow, defendant 20, purported to adopt P.W. 5, but that adoption was subsequently set aside by Court. On 25 -2 -1940 she obtained an authorisation from two of the reversioners to adopt a son to her husband. But before any actual adoption took place, the widow surrendered her husband's estate in favour of defendants' 1 and 2, the nearest reversioners. On 28 -2 -1940 under Ex. A. 2 the widow and Pichamma, the sister of the deceased Pichayya and mother of defendants 1 and 2 jointly executed a deed of surrender in favour of defendants 1 and 2 conveying all the properties of Pichayya and the document mentions a payment of Rs. 2000 to the widow for her maintenance for her lifetime and for spiritual benefit to her husband and for offering Gaya pindams etc. Prior to this document it may be stated that by a deed of gift (Ex. B. 1) dated 26 -2 -1940 she had already made a gift of 2 acres of land to a temple. Immediately after the execution of Ex. A. 2, the surrender deed, defendants 1 & 2 and the other reversioners entered into a deed of settlement, Ex. A. 3, whereunder the properties of Chukkapalli Pichayya which were surrendered by the widow were divided as between defendants 1 and 2 and the other reversioners in certain proportions, the plaintiff's grandfather, who was one of the reversioners, also getting a share. It is found that there was a sale deed by defendants 1 & 2 on the same date, namely 2 -3 -1940, Ex. B. 2 of the 3 acres and 6 cents of land to D.W. 1 for a sum of Rs. 3000 out of which Rs. 2000 is mentioned as having been received by defendants 1 & 2 to enable them to pay the widow the maintenance as provided under Ex. A. 2, the balance being the amount due under a prior transaction between defendants 1 & 2 and D.W. 1. More than three years thereafter on 30 -9 -1943, by Ex. B. 20, D.W. 1 sold the 3 acres and 6 cents of land, which he purchased under Ex. B. 2, to defendant 15 for the same price of Rs. 3000. Defendant 15 is the brother's son of the widow. From a reading of Ex. B. 20, it is seen that the sum of Rs. 2000, which was paid by D.W. 1, as part of the sale consideration of Ex. B. 2 for payment of the sum provided under. Ex. A. 2 to the widow, was in fact borrowed by D.W. 1 from defendant 15 even on the date of Ex. B. 2 and that there was an arrangement between D.W. 1 and defendant 15 that if the amount is not repaid he should execute a conveyance of the property which he purchased under Ex. B. 2 to defendant 15. The recitals in Ex. B. 20 show that defendant 15 was the person who in fact paid the sum of Rs. 2000 which enabled defendants 1 and 2 to pay the widow as and for her maintenance.
(2.) IT may also be mentioned that the properties were subject to a usufructuary mortgage in favour of P.W. 5, and defendants 1 and 2 and others instituted O.S. No. 292 of 1941 on the file of the District Munsif's Court, of Tenali, for redemption and P.W. 5 in turn instituted O.S. No. 32 of 1942 on the file of the Subordinate Judge's Court of Tenali for a declaration that the surrender deed and the settlement were fictitious transactions not binding on him. There was a compromise, which was recorded in O.S. No. 292 of 1941, Ex. B. 7, on 2 -8 -1943, whereby the mortgagee was given about 3 acres in satisfaction of his mortgage. The widow was a party to the compromise and all the parties including the widow Achamma declared under the compromise that the surrender deed and the settlement deed were true and valid. Achamma was nearly 75 years at the time of the deed of surrender, and 5 years thereafter on 17 -2 -1945 she executed a deed of adoption, Ex. A. 1 in favour of the plaintiff evidencing the adoption of the plaintiff. The plaintiff instituted the suit claiming to be entitled to the suit properties and alleging that the surrender deed executed by the widow in favour of defendants 1 and 2 was not valid. It is also alleged that it was the result of a conspiracy between the widow, defendants 1 and 2 the sister's sons and the nearest reversioners, and the other reversioners. that the surrender, settlement and the sale deeds, Exs. A. 2, A. 3, B 2 and B 20, though of different dates were the result of an arrangement between the parties to benefit defendant 15, who is the brother's son of the widow, with a portion of the property and also to benefit the other reversioners, though none of them were the nearest reversioners, and that being the result of such an arrangement, the surrender was not valid nor being bona fide.
(3.) THE factum of the adoption was not disputed; but it was contended that the adoption was not valid as the widow had no authority from the husband and she had not even the consent of the nearest sapindas, and further that in any event the widow having surrendered her interest in her husband's estate in favour of defendants 1 and 2, the plaintiff, even though validly adopted, was not entitled to recover the suit properties. The trial Court held against the plaintiff on both these questions, found that the adoption was not valid and upheld the surrender.;


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